Fridley v. Bowen
| Decision Date | 30 September 1877 |
| Citation | 1877 WL 9826,87 Ill. 151 |
| Parties | BENJAMIN F. FRIDLEYv.EDWIN A. BOWEN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Superior Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.
This bill was to foreclose a mortgage made by Edmund D. Taylor and wife, to secure a promissory note for the sum of $10,000, bearing date March 25, 1875, payable to Edwin A. Bowen at the National Bank of Mendota, one year after date, with interest at ten per cent per annum. Among others, Benjamin F. Fridley was made defendant, and summons was served upon him in time for the January term, 1877, of the Superior Court, to which it was made returnable. There being no appearance, upon the calling of the cause, for him or any other defendant, all of whom had been either served with process or had entered their appearance more than ten days before the first day of that term of court, under a standing rule of court all the defendants were defaulted, and the bill taken as confessed as to them. At the same term of court Fridley appeared and entered his motion, supported by affidavits, to set aside the default as to him, and, at the same time, presented his answer to the merits of the bill and asked leave to file it. Counter affidavits were filed, and, on consideration, the court found defendant Fridley had acted in good faith, and had shown sufficient cause for setting aside the default as to him, but held the answer offered did not present any defense to the bill, and overruled the motion, to which ruling of the court the defendant saved an exception, and brings the case to this court on error.
Mr. B. F. FRIDLEY, and Mr. R. G. MONTONY, for the plaintiff in error.
Mr. FRANK J. CRAWFORD, and Mr. LUCIEN B. CROOKER, for the defendant in error.
Having examined the affidavits presented in support of the motion to set aside the default, we agree with the court below that defendant complaining acted in good faith, and showed sufficient cause for setting aside the default previously entered against him. Whether there was any definite agreement concluded between counsel, defendant understood, and had just reason for his belief, that complainant's counsel, on account of courtesies shown him by some of defendants, had stipulated that no steps would be taken in the case until after the 15th day of January, but in violation of that understanding a default was taken on the third day of the term, under the standing rule of court. The motion was made at the same term of court, and as no unreasonable delay would have ensued from setting aside the default, the court properly ruled sufficient cause was shown for setting it aside as to defendant Fridley.
On the other point decided we can not concur in the views expressed by the court. Our opinion is, the answer, if true, presents a complete defense to the bill. The matters set forth in the answer are supported by affidavits, and as there are no counter affidavits tending to disprove the allegations of the answer, we must, for the purposes of this motion, assume the facts stated are true. It appears defendant had been the owner of the mortgaged property, and had sold it to Edmund D. Taylor for stock in the “Coal and Iron Company” of La Salle, and had made him an absolute deed for the same, which was recorded in the county of Cook, where the property is situated. Afterwards, defendant, claiming to have been defrauded and overreached in the transaction by false representations as to the value of the stock he was to receive, induced Taylor to rescind the contract, and to reconvey the property to him. But in the meantime, Taylor had borrowed of the National Bank of Mendota the sum of $10,000, for which he had given his promissory note to Edwin A. Bowen, the president of the bank, and secured it by a mortgage on the property in controversy. These facts...
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